Nominating A Guardian

At one time, the English Parliament passed a provision that a father could appoint a guardian to take control of his children’s person and estate at the time of his death. This provision became part of the so-called common law. The common law is a body of law based on the English legal system.

When New Hampshire was formed as a State, the English law became our law, common to all. Once a guardian is nominated, the probate court must still find the person nominated to be suitable. If someone with standing feels the nominee should not be appointed, that person needs to inform the probate court.

That person needs to be specific as to why the appointment should not take place. If the court finds the nominee unsuitable, then the guardian nominated is removed from that position or not officially appointed. A hearing is then held to determine the proper nominee.

Parents are the natural guardians of their children. When one parent dies, the other parent becomes the sole guardian. You don’t need to go to the probate court for that to occur.

When my wife and I were younger and our children were wee lassies, we decided to write a will. A problem ensured when I wanted to nominate my brother to be guardian. The problem was that my wife preferred one of her sisters. In the end, we agreed to disagree.

In her will, she provided that one of her sisters would be guardian. In my will, I provided that my brother would act in that capacity. We also agreed that the last person living “won.”

As you can see, appointing a guardian is a personal decision. We all have our wishes. Appointing a guardian in anticipation of a mental or physical disability can also occur.

Again, the person making the nomination has to be concerned with the person and the estate. You can appoint one guardian to raise the child and another person to be in charge of the child’s money. Some children have
money. Occasionally, the money comes from a trust fund. Other times, it comes from social security payments or bank accounts and investments set up for the children. Some people do better raising children than they do taking care of money.

If you weren’t around to raise your children, who would you want to do it?

Would the person you want be willing to take on the position? It is always good to ask them ahead of time. In that fashion the person you nominate will likely accept the nomination. If it turns out they don’t accept the nomination, there has been a wasted effort.

On that score, you are better off having two nominees: a primary one and a secondary one. Then, if the primary one is not eventually accepted or refuses the nomination, the secondary one can step in.

You should note this: many people make wills solely for the purpose of nominating a guardian. If it’s that important, it may be time for you to take care of this business.

R. Peter Decato